JAMES G. CATTALO, PETITIONER V. UNITED STATES OF AMERICA; DAVID GROVE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6135, No. 90-6222 In The Supreme Court Of The United States October Term, 1990 On Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The judgment orders of the court of appeals (Pet. App. 14a-17a) are unreported. /1/ The order and opinion of the district court (Pet. App. 1a-12a) are also unreported. JURISDICTION The judgments of the court of appeals were entered on July 24, 1990. Pet. App. 14a-17a. The petitions for a writ of certiorari were filed on October 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly allowed three defense witnesses to decline to testify based on their Fifth Amendment privilege against self-incrimination. 2. Whether the district court properly refused to allow petitioners to play six government tapes in their entirety before the jury. 3. Whether the district court properly entered a judgment of forfeiture against petitioners holding them and two co-defendants jointly and severally liable for the total amount of gross proceeds that the jury determined was subject to forfeiture. STATEMENT After a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioners were convicted of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c); and conspiring to commit that offense, in violation of 18 U.S.C. 1962(d). In addition, petitioner Cattalo was convicted on two counts of possessing methamphetamine and cocaine with intent to distribute these substances, in violation of 21 U.S.C. 841(a)(1); three counts of making false declarations before a district court, in violation of 18 U.S.C. 1623; and three counts of filing false tax returns, in violation of 26 U.S.C. 7206(1). Petitioner Grove was, in addition to the RICO convictions, convicted on three counts of possessing methamphetamine and cocaine with intent to distribute these substances, in violation of 21 U.S.C. 841(a)(1); and three counts of filing false tax returns, in violation of 26 U.S.C. 7206(1). Petitioners were each sentenced to 15 years' imprisonment, a $10,000 fine, five years of probation, and three years of special parole. Petitioners were each also ordered to pay $5000 in restitution. In addition, the district court entered a judgment of forfeiture against petitioners and two co-defendants, jointly and severally, in the amount of $180,700. 1. Petitioners were members of an undercover narcotics unit of the Philadelphia Police Department known as "5 Squad," which was headed by co-defendant John Wilson. Between 1980 and 1984, petitioners and other members of 5 Squad engaged in a systematic pattern of robbing drug dealers and stealing and accepting bribes from them. In a typical robbery, petitioners would falsify information to obtain a search warrant and in executing the warrant take money and valuables found at the search location for later division among the members of 5 Squad. In return for bribes, petitioners refrained from arresting major dealers of P2P, methamphetamine, and cocaine, and supplied these dealers with information about ongoing police investigations. Petitioners and their partners, Leo Ryan and Charles Hund, also stole cocaine, marijuana, and methamphetamine from drug dealers for resale through other drug dealers. Gov't C.A. Br. 8-19. 5 Squad was disbanded in February 1984. In February 1987, following a federal investigation, petitioner Cattalo's partner, Leo Ryan, was indicted in the United States District Court for the Eastern District of Pennsylvania. This prompted a series of meetings among petitioners and Wilson, during which they agreed on a fabricated version of events to rebut the charges against Ryan. Thereafter at Ryan's trial, petitioner Cattalo falsely testified about three searches during which he and Ryan had stolen money. Gov't C.A. Br. 21-22. After Ryan was convicted, Ryan and Charles Hund, petitioner Grove's partner, began cooperating in the government's investigation of 5 Squad. /2/ Ryan and Hund tape-recorded some of their conversations with petitioners and Wilson. 2. At petitioners' trial, the government played portions of four of the six tapes that Ryan and Hund had obtained. In those portions, among other things, Ryan was told not to cooperate with the government's investigation and Hund was offered spurious defenses in case he was indicted. Gov't C.A. Br. 22, 55. Ryan and Hund also testified for the government at petitioners' trial. At several points before and during trial, petitioners or their co-defendants moved to have some or all of the government tapes played in their entirety on the grounds of completeness. On each occasion, the court said it would consider admitting portions of the tapes if an offer of proof were made that specifically identified relevant portions and the evidentiary basis for their admission. None of the defendants made such an offer at any time during the government's case. Gov't C. A. Br. 55-59. /3/ During petitioner Grove's defense case, counsel for Grove renewed his previous motion to play the unplayed portions of the government tapes in their entirety. In addition to the completeness argument, Grove's counsel claimed that these portions contained prior inconsistent statements by Ryan and Hund and exculpatory statements by petitioners. The court reviewed the portions identified and determined that there were no inconsistencies. The court also ruled that the unplayed portions were not admissible either for the sake of completeness under Fed. R. Evid. 106 or to show petitioners' then mental state under Fed. R. Evid. 803(3). Gov't C.A. Br. 59-60. /4/ 3. As part of their defense case, petitioners subpoenaed three former 5 Squad members -- Raymond Stackhouse, Andrew Dougherty, and Edward Krystopa -- to testify. At a hearing out of the presence of the jury, each of the three declined to testify based on his Fifth Amendment privilege against self-incrimination. Gov't C.A. Br. 46; C. A. App. 5769-5779. /5/ 4. After the jury found petitioners and co-defendants Wilson and Ronald Giongo guilty on the RICO counts, the district court submitted the forfeiture issue to the jury. In response to questions on a special verdict form, the jury indicated that: (1) the "total amount of gross proceeds to the enterprise that should be forfeited to the United States" was $180,700; and (2) "the amount * * * that each defendant is required to forfeit" was $5,000 for each petitioner and for Wilson, and $0 for Giongo. Pet. App. 4a-5a, 13a. The district court subsequently granted the government's motion to mold the forfeiture verdict, and it entered a judgment of forfeiture against petitioners, Wilson, and Giongo, jointly and severally, in the amount of $180,700. Pet. App. 1a-12a. The court concluded that the jury's response to the question on the special verdict form regarding individual apportionment was not binding. The court determined that there was no "rational legal basis, on the evidence in this case, for the jury's individual apportionment amounts, particularly in light of their response to the gross proceeds question." Id. at 8a-9a. The court also determined that, since forfeiture is mandatory, "the individual apportionments constitute impermissible remission or mitigation of the proceeds acquired from the defendants' racketeering activity." Id. at 9a. The court further concluded that "there is no bar to the imposition of joint and several liability on a RICO forfeiture verdict," and it found "imposition of joint and several liability consistent with the statutory scheme." Id. at 12a. The court accordingly ruled that "entering judgment based on the gross proceeds is most appropriate under the circumstances." Ibid. 5. The court of appeals summarily affirmed petitioners' convictions and the judgment of forfeiture in unpublished judgment orders. Pet. App. 14a-17a. ARGUMENT 1. Petitioners first contend that the district court deprived them of their Sixth Amendment right to compulsory process when it allowed three former members of 5 Squad called as defense witnesses to refuse to testify based on their Fifth Amendment privilege against self-incrimination. No. 90-6135 Pet. 14-20; No. 90-6222 Pet. 14-20. That contention is incorrect. A criminal defendant's Sixth Amendment right to compulsory process does not override a witness's Fifth Amendment privilege against self-incrimination. See, e.g., Alford v. United States, 282 U.S. 687, 694 (1931); United States v. Paris, 827 F.2d 395, 398-399 (9th Cir. 1987); United States v. Whittington, 783 F.2d 1210, 1218-1219 (5th Cir.), cert. denied, 479 U.S. 822 (1986); United States v. Thornton, 733 F.2d 121, 125 (D.C. Cir. 1984). Instead, when a witness invokes the privilege, the privilege must be sustained if it is "evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486-487 (1951). "It is for the (trial) court to say whether (the witness's) silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken." Id. at 488 (citations and internal quotation marks omitted). The trial court's determination "must be governed as much by (its) personal perception of the peculiarities of the case as by the facts actually in evidence." Id. at 487. Contrary to petitioners' assertion (No. 90-6135 Pet. 18-20; No. 90-6222 Pet. 18-20), the district court had ample evidence before it supporting the basis for the three witnesses' assertion of their privilege against self-incrimination. The indictment in this case charged petitioners and co-defendant Wilson with a conspiracy to obstruct justice as well as the RICO conspiracy. /6/ In connection with the investigation of 5 Squad, each witness had been served with a letter advising that he was the target of a federal investigation into a RICO conspiracy and a conspiracy to obstruct justice. C.A. Supp. App. 27-29; see C.A. App. 5773. Moreover, each witness was identified in the bill of particulars as an unindicted co-conspirator in both conspiracies. C.A. Supp. App. 23, 25. Accordingly, before trial, counsel for the three witnesses advised the court that each would invoke his privilege against self-incrimination and refuse to testify. C.A. App. 6891-6896. At trial, all three of the witnesses were squarely identified as active co-conspirators in both conspiracies during the government's case-in-chief. Gov't C.A. Br. 46. Finally, at the hearing out of the presence of the jury, each of the witnesses invoked his Fifth Amendment privilege after being sworn. C.A. App. 5771-5772. Because the record before the court was replete with evidence that the three witnesses were involved in the criminal conduct about which petitioners wished to question them, the district court properly concluded that each was entitled to invoke his Fifth Amendment privilege against self-incrimination. See Hoffman v. United States, 341 U.S. at 487-489; United States v. Thornton, 733 F.2d at 125. /7/ 2. Petitioners further contend that the district court deprived them of their Fifth Amendment and Sixth Amendment rights to present a defense by refusing to admit into evidence all six government tapes in their entirety. No. 90-6135 Pet. 21-24; No. 90-6222 Pet. 21-24. This fact-bound contention is erroneous and in any event does not warrant this Court's review. The district court properly rejected petitioners' repeated assertions that admission of all the tapes in their entirety was necessary for the sake of completeness. As the district court pointed out (C.A. App. 1479), the applicable rule of evidence, Fed. R. Evid. 106, requires admission of recorded statements in their entirety only if they "ought in fairness to be considered." The court accordingly gave petitioners numerous opportunities to show why, under Rule 106 or any other principle, their blanket request for admission should be granted. Gov't C.A. Br. 56-59. Petitioners simply failed to avail themselves of these opportunities. Petitioners' failure to make the minimal proffer requested by the trial court provides no basis for review by this Court. As the Court has recognized, a defendant "does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). Rather, evidence may be excluded "through the application of evidentiary rules that themselves serve the interests of fairness and reliability -- even if the defendant would prefer to see that evidence admitted." Crane v. Kentucky, 476 U.S. 683, 690 (1986). The lower court's evidentiary ruling was well within its discretion to make. 3. Finally, petitioners contend that the district court improperly held them jointly and severally liable for the total amount of the forfeiture judgment. No. 90-6135 Pet. 25-27; No. 90-6222 Pet. 25-27. Contrary to petitioners' contention, the district court was not bound to give effect to the jury's individual apportionments on the special verdict form. The forfeiture provisions of 18 U.S.C. 1963 are mandatory. See, e.g., United States v. Kravitz, 738 F.2d 102, 104 (3d Cir. 1984), cert. denied, 470 U.S. 1052 (1985); United States v. Hess, 691 F.2d 188, 190 (4th Cir. 1982); United States v. Godoy, 678 F.2d 84, 88 (9th Cir. 1982), cert. denied, 464 U.S. 959 (1983); United States v. L'Hoste, 609 F.2d 796, 809-811 (5th Cir.), cert. denied, 449 U.S. 833 (1980). Thus, once the jury had determined the extent of the interest and property subject to forfeiture to be $180,700, the court was required to enter a judgment of forfeiture in that amount. See Fed. R. Crim. P. 31(e); United States v. Kravitz, 738 F.2d at 105. The district court correctly concluded (Pet. App. 6a-10a) that the jury's subsequent apportionment of $15,000 among petitioners and co-defendant Wilson constituted an impermissible mitigation of the forfeiture. The district court was also correct in concluding (Pet. App. 10a-12a) that petitioners and their two co-defendants should be jointly and severally liable for the amount of the judgment. In United States v. Caporale, 806 F.2d 1487, 1506-1509 (11th Cir. 1986), cert. denied, 483 U.S. 1021 (1987), the court explained that the imposition of joint and several liability in circumstances such as these is consistent with the legislative history of the RICO forfeiture provision and advances the express purposes of the RICO statute. See also United States v. Benevento, 663 F. Supp. 1115, 1118-1119 (S.D.N.Y. 1987), aff'd, 836 F. 2d 129 (2d Cir. 1988). Indeed, if the government were required to determine the precise allocation of the proceeds of racketeering among the offenders before forfeiture could be ordered, the effectiveness of the forfeiture remedy would be substantially impaired. Offenders could escape the forfeiture of their illegal profits simply by masking the allocation of the proceeds among them. Cf. United States v. Cauble, 706 F.2d 1322, 1346-1347 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984). /8/ CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney JANUARY 1991 /1/ "Pet. App." refers to the appendix to the petition in No. 90-6135. We have numbered the pages 1a-19a. /2/ Hund was indicted along with petitioners in this case. He pleaded guilty pursuant to a plea agreement. Gov't C.A. Br. 4 n.1. /3/ The court also indicated that petitioners could use unplayed portions of the government tapes during cross-examination of Ryan and Hund to refresh their recollection out of the presence of the jury or to prove prior inconsistent statements. C.A. App. 1545-1548, 1553-1555. During Ryan's cross-examination, neither petitioner asked about the contents of the unplayed tapes. Gov't C.A. Br. 56-57. During Hund's cross-examination, petitioner Cattalo asked about the unplayed tapes, and Hund testified that they contained conversations concerning unrelated, "innocent" matters. Id. at 57-58. Petitioner Grove did not question Hund about the unplayed tapes. Ibid. /4/ Petitioner Grove also moved for permission to play two other tapes that had not bee made by the government; they concerned conversations between Ryan and his insurance company and between Hund and a DEA agent. Petitioners do not appear to raise any issue with respect to the district court's subsequent exclusion of those tapes. No. 90-6135 Pet. 11-12, 21; No. 90-6222 Pet. 11-12, 21. /5/ Three other former members of 5 Squad -- Charles Newman, James Hunt and James Fee -- did testify as defense witnesses. Gov't C.A. Br. 46 n.20. /6/ Petitioners and co-defendant Wilson were acquitted on the conspiracy to obstruct justice count of the indictment. /7/ Petitioners incorrectly argue (No. 90-6135 Pet. 18-19; No. 90-6222 Pet. 18-19) that the witnesses faced no danger of prosecution because the five-year statute of limitations for any RICO offenses that they committed between 1980 and 1984 had expired by November 1989, when they were called to testify. In fact, the witnesses were still subject to prosecution based on RICO offenses during the 1980-1984 period at the time of trial. RICO permits prosecutions for a pattern of racketeering activity if any predicate act is committed within five years of the indictment. A "pattern of racketeering activity" includes any racketeering activity committed within ten years after the commission of a prior act of racketeering activity. 18 U.S.C. 1961(5). Since the federal investigation into 5 Squad activities was ongoing at the time of trial (C.A. App. 5492-5493), there remained a distinct possibility that later criminal acts by the witnesses would be discovered. In any event, the statute of limitations had not expired for the conspiracy to obstruct justice in which the witnesses were implicated, because that offense was ongoing during Ryan's 1987 trial. /8/ Contrary to petitioners' assertion (No. 90-6135 Pet. 25-26; No. 90-6222 Pet. 25-26), the decision below does not conflict with any court of appeals decision. None of the decisions cited by petitioners concerns joint and several liability for RICO forfeiture judgments. See United States v. Ofchinick, 883 F.2d 1172, 1177-1184 (3d Cir. 1989), cert. denied, 110 S. Ct. 753 (1990); United States v. Porcelli, 865 F. 2d 1352, 1364-1366 (2d Cir.), cert. denied, 110 S. Ct. 53 (1989); United States v. Horak, 833 F.2d 1235, 1241-1245 (7th Cir. 1987).